731 F.

2d 1491

UNITED STATES of America, Plaintiff-Appellee,

v.
Bruce Christian BROWN and James Patrick Manikowski,
Defendants-Appellants.
No. 82-8522.

United States Court of Appeals,

Eleventh Circuit.
May 10, 1984.

Stanley M. Baum, Atlanta, Ga. (Court Appointed), for Brown.

Vernon Pitts, Federal Defender Project, Inc., Atlanta, Ga., for
Manikowski.
James W. Kesler, Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of
Georgia.
Before VANCE and CLARK, Circuit Judges, and SWYGERT* , Senior
Circuit Judge.
SWYGERT, Senior Circuit Judge:

This is an appeal by the defendants James Manikowski and Bruce Brown from
their convictions, under 21 U.S.C. Sec. 841(a)(1) (1976) and 18 U.S.C. Sec. 2
(1976), of aiding and abetting each other to possess with intent to distribute a
controlled substance. On January 27, 1981, the defendants were accosted by
James Burkhalter, an Atlanta police detective, and Paul Markonni, a Drug
Enforcement Administration agent, at Hartsfield International Airport in
Atlanta, Georgia. In the course of the ensuing search (partly consensual and
partly nonconsensual) of the defendants' persons and carry-on baggage a
quantity of cocaine was discovered; and a search of their checked baggage
revealed two revolvers. The cocaine and revolvers were used against them at
trial, following their unsuccessful motions to suppress. Because we find that the

motion to suppress the cocaine was improperly denied, we reverse their

convictions.
2

* The facts leading up to the searches may be stated briefly. On the morning of
January 27 Brown and Manikowski arrived on a flight from West Palm Beach,
Florida, and were observed by Burkhalter and Markonni as they inquired about
a connecting flight to Los Angeles and obtained boarding passes for the flight.
After noticing the defendants looking at them, Burkhalter and Markonni asked
the ticket agent to call up the defendants' computerized reservation record, and
learned that the tickets had been issued in the names Campbell and DelRay
shortly before the flight was scheduled to leave West Palm Beach, and had
been paid for in cash. When the defendants continued looking at them the
officers approached them, identified themselves as law enforcement officers,
and asked to speak with them. The defendants consented and on request showed
the officers their tickets and identified themselves as Campbell and DelRay.
They told the officers they had no other identification, and allowed the officers
to inspect their carry-on bags; the bags contained a hotel receipt bearing the
names Monrose and Manikowski, whom the defendants identified as friends
they had vacationed with in Florida, and other pieces of paper bearing the name
DelRay. The defendants also consented to a search of their checked baggage,
about which the officers inquired after seeing baggage claim checks stapled to
an airline ticket envelope, but explained that it could not be produced because it
had been checked through to Los Angeles. Brown consented to a search of his
person, but Manikowski refused, and also refused to produce a wallet that the
officers thought they detected in his back pocket. Thereupon Markonni forcibly
escorted Manikowski from the departure gate where the encounter began to a
jetway 100 yards away, seized the wallet, and conducted a pat-down search.
The wallet contained identification bearing the name James Manikowski, and
the search revealed three packets of cocaine strapped to Manikowski's legs.
After the seizure of the wallet Markonni announced that Manikowski was under
arrest for falsely identifying himself to a law enforcement officer.

Subsequently DEA officials in Los Angeles, who had been contacted by

Markonni, retrieved the defendants' checked bags and subjected them to a dogsniff test. Because the dog reacted positively, the bags were sent under seal to
Atlanta, where a search warrant was obtained. When the bags were opened they
were found to contain two revolvers, but no drugs.1

Brown and Manikowski were each indicted on charges of aiding and abetting
the other to possess cocaine with intent to distribute it. Before trial each moved
to suppress the cocaine and revolvers on the ground that the evidence had been
obtained in violation of the fourth amendment. Specifically, they argued that

the officers lacked reasonable suspicion to detain them at the beginning, thus
tainting the subsequent discoveries; lacked probable cause to search
Manikowski without his consent; and violated Fed.R.Crim.P. 41(a) by
transporting the checked baggage from Los Angeles into the jurisdiction where
the warrant was obtained. The magistrate to whom the pretrial motions were
referred recommended that they be denied, reasoning that the officers' initial
encounter with the defendants implicated no fourth amendment concerns; that
the nonconsensual search of Manikowski was justifiable as a search incident to
a lawful arrest, because the officers had probable cause to believe Manikowski
had violated a Georgia statute making it unlawful to identify oneself falsely to a
law enforcement officer (although the magistrate rejected the government's
alternative argument that the officers had probable cause to believe
Manikowski possessed drugs); that Brown lacked standing to challenge the
search of Manikowski; and that the warrant to search the baggage was lawful.
The district judge adopted the magistrate's recommendations, and allowed the
evidence to be admitted at trial; both defendants were convicted of the crimes
charged.
II
5

It cannot be disputed that the two officers initially had no reasonable and
articulable suspicion that the defendants were involved in illegal activity. The
facts that caught their attention--that the defendants came from West Palm
Beach, which the officers identified as "source city" for the distribution of
narcotics, had paid for their tickets in cash, and looked at the officers--are
insufficient to justify an investigatory stop (a "Terry" stop, see Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) short of an arrest. See Reid
v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980)
(per curiam). But it is established that not every "stop" is a detention requiring
the modest fourth amendment protection of "reasonable suspicion" prescribed
by Terry. In particular, the Supreme Court has held that police officers may
"approach[ ] an individual on the street or in another public place, ... ask[ ] him
if he is willing to answer some questions, [and] put[ ] questions to him if the
person is willing to listen" without implicating the fourth amendment. Florida
v. Royer, --- U.S. ----, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality
opinion); see also Reid v. Georgia, 448 U.S. at 440 n. *, 100 S.Ct. 2752, 2753
n. *, 65 L.Ed.2d 890; Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. 1868, 20
L.Ed.2d 889. It is generally agreed that such an encounter is not covered by the
fourth amendment unless "a reasonable person would have believed that he was
not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); see also United
States v. Berry, 670 F.2d 583, 593-95 (5th Cir. Unit B 1982) (en banc).

We need not decide, however, whether at the outset of their encounter with the
officers Brown and Manikowski would reasonably have felt they were not free
to leave, tainting the evidence discovered subsequently, for we conclude that
the search of Manikowski and the seizure of the cocaine were improper in any
case. If the initial encounter was lawful, any evidence voluntarily produced or
discovered in the course of the encounter by a consensual search would be
admissible. Royer, 103 S.Ct. at 1326. But Manikowski did not consent; rather,
upon his refusal he was forcibly taken to a less public area and searched against
his will. Absent consent, such a search ordinarily would violate the fourth
amendment. Id. at 1326-28.

The government urges, however, that because there was probable cause to
arrest Manikowski the search was a lawful incident to arrest. Cf. id. at 1329.
We do not linger over the government's argument, rejected below but renewed
in its brief, that probable cause to believe Manikowski was carrying drugs
existed before he was escorted to the jetway, for at oral argument the
government conceded that such probable cause was lacking. Instead, the
government relies on the argument accepted below, that Agent Markonni had
probable cause to believe Manikowski had violated Georgia law by falsely
identifying himself.2 The magistrate reasoned that the combination of
Manikowski's nervousness, his denial of having any identification, his refusal
to produce a wallet, and the difference between the names on the tickets and
those on the papers in the baggage gave Markonni probable cause to believe the
defendants had given false names. But general nervousness is slender evidence
of specific lies, especially because being stopped and questioned by police
officers could be alarming even to the innocent; and the names in the baggage
were not identified with the defendants and thus did not contradict the names on
the tickets, unlike Ehlebracht, 693 F.2d at 336-37; Berry, 670 F.2d at 588-89,
604; and Pulvano, 629 F.2d at 1153, 1155, in which arrests under the Georgia
false-identification law were based on the production of actually conflicting
identifications and on acknowledged falsity on the part of the defendants. Here,
by contrast, the defendants simply refused to produce identification other than
the airline tickets. If the Georgia statute were construed to require, not only
truthful identification, but proof of truthfulness on demand, it would be
unconstitutional. See Kolender v. Lawson, --- U.S. ----, 103 S.Ct. 1855, 185960, 75 L.Ed.2d 903 (1983). We therefore must interpret the statute to prohibit
only actual lies in order to avoid an unconstitutional construction. The
defendants' refusal to furnish identification--which they were entitled to do if
indeed this was a Terry stop, as the government must contend--may have
created suspicion that they had actually used false names, but falls far short of
probable cause. Of course, when Manikowski's wallet was seized and was
found to contain identification conflicting with his ticket, probable cause was

established; but this occurred only after the seizure and therefore cannot be used
to justify it. Contrast Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct.
2556, 2564 & n. 6, 65 L.Ed.2d 633 (1980) (noting that search was valid
because of probable cause to arrest, and emphasizing that "[t]he fruits of the
search ... were ... not necessary to support probable cause to arrest"). We
conclude that the search of Manikowski violated the fourth amendment, and
the fruits of the search were not admissible against him.
III
8

Whether the evidence seized as a result of the illegal search of Manikowski

may nevertheless be used against Brown is more difficult. Although it may
seem anomalous if the evidence is inadmissible against Manikowski, who
actually carried the cocaine, but admissible against Brown, who did not, it is
established that fourth amendment rights are personal, and therefore cannot be
asserted vicariously. See, e.g., Alderman v. United States, 394 U.S. 165, 174,
89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969). The government argues that Brown
lacks standing to challenge the constitutionality of the search and seizure
because he was not the subject of the search. Treating the question as one of
standing, an approach the Supreme Court once employed, see Jones v. United
States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), invites the
conclusion that one cannot challenge the legality of a search directed at another.
The notion of "standing" to invoke the fourth amendment, implying that
"targets" of searches are entitled to challenge the searches' constitutionality,
was rejected by the Court, see Rakas v. Illinois, 439 U.S. 128, 132-38, 99 S.Ct.
421, 424-27, 58 L.Ed.2d 387 (1978), however, in favor of the concept that
fourth amendment rights are personal, see id. at 138-40, 99 S.Ct. at 427-28; the
proper question is whether one's own rights have been violated, a question of
substantive fourth amendment law rather than one of procedure. As the Court
has made clear, that question turns on whether one has a "legitimate expectation
of privacy" in the place searched. Rawlings, 448 U.S. at 104-06, 100 S.Ct. at
2561-62; United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2553,
65 L.Ed.2d 619 (1980); Rakas, 439 U.S. at 143, 99 S.Ct. at 430; see also Katz
v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967).

It is therefore necessary to determine whether Brown had a legitimate

expectation of privacy in Manikowski's person in order to answer whether he
may seek to exclude the evidence seized from Manikowski. The Supreme Court
has characterized that issue as one of fact. Rawlings, 448 U.S. at 104-06, 100
S.Ct. at 2561-62; Salvucci, 448 U.S. at 92, 95, 100 S.Ct. at 2553, 2554.
Because the district court below made no findings on this issue, ordinarily the
proper course would be to remand. Cf. Salvucci, 448 U.S. at 95, 100 S.Ct. at

2554. We believe the circumstances of this case and the nature of the crime
charged make it unnecessary to remand the case for further findings, however.
At one time the Supreme Court held that a defendant charged with a possessory
crime "automatically" could challenge the seizure of the object he was accused
of possessing, on the grounds that otherwise defendants would be faced with
the choice of claiming possession as a foundation for their suppression motions
and risking use of that testimony at trial should their motions fail, or forgoing
their fourth amendment challenges; and that the government would be placed in
the position of arguing inconsistently that the defendant did not have possession
for suppression purposes but did have possession for substantive purposes.
Jones, 362 U.S. at 261-64, 80 S.Ct. at 731-34. Although the Court has since
repudiated the "automatic standing" rule (because a defendant's testimony in
support of a motion to suppress cannot be used as substantive evidence at trial,
see Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19
L.Ed.2d 1247 (1968), and because "possession" for substantive criminal law
purposes is not necessarily a proxy for the kind of interest shielded from search
or seizure by the fourth amendment), see Salvucci, 448 U.S. 89-91, 100 S.Ct.
2551-2552, it has held that ownership of the object seized is a factor to be
considered in determining whether the defendant had a reasonable expectation
of privacy that was invaded by the search or seizure, Rawlings, 448 U.S. at 105,
100 S.Ct. at 2561; Salvucci, 448 U.S. at 91-92, 100 S.Ct. at 2552-2553; Smith
v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979);
Rakas, 439 U.S. at 142 n. 11, 143 n. 12, 99 S.Ct. at 430 n. 11 & n. 12.
Ownership of the object would carry little or no weight if the defendant put the
object in plain view, see Rawlings, 448 U.S. at 106, 100 S.Ct. at 2562, or put it
in a place out of view but from which he could not reasonably expect to exclude
others, as in Rawlings, id. at 104-05, 100 S.Ct. at 2561 (nonconsensual stowing
of drugs in purse to which others had free access and in which defendant had no
subjective expectation of privacy). But the present case is not of this type. Here,
the essence of the charge against Brown is that he and Manikowski acted
jointly in possessing the drugs, which happened to be concealed on
Manikowski's person. The packets of cocaine strapped to Manikowski's legs
were neither in plain view nor in a place to which others had free access. If
Brown in fact complotted with Manikowski to conceal the cocaine in so private
a place, as he is charged with doing, that fact itself establishes a reasonable
expectation of privacy. Like the defendant in Katz, 389 U.S. at 351-52, 88 S.Ct.
at 511, who by closing the telephone booth door could reasonably expect his
conversations to be private unless his interlocutor revealed them, Brown could
expect the cocaine to remain private unless Manikowski consented to reveal it.
Cf. United States v. Perez, 700 F.2d 1232, 1236 (8th Cir.1983). The
reasonableness of the expectation of privacy, established in other cases by the
extent of the defendant's enjoyment of and dominion over the place searched,
see United States v. Torres, 705 F.2d 1287, 1294-95 (11th Cir.) (per curiam),

vacated but en banc consideration withdrawn pending remand to the panel, 718
F.2d 998 (11th Cir.1983) (en banc) (per curiam); United States v. Haydel, 649
F.2d 1152, 1154-55 (5th Cir. Unit A 1981), modified, 664 F.2d 84 (5th Cir.)
cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982), is
established in this case by the nature of the place itself. Consensual access to
another's body as a place of concealment is so unlikely to be casual, unlike
access to a car or house, that a more particularized examination of the
defendant's dominion and efforts to guarantee privacy, of the kind undertaken in
cases involving cars or houses, would not be helpful. Because under the
government's necessary theory of the case the bailment of the drugs was
consensual, unlike Rawlings, and the place of concealment was patently
private, we believe remanding for further factfinding on the reasonableness of
Brown's expectation of privacy is unnecessary. Brown's own fourth amendment
interest in the privacy of the objects and place he and Manikowski jointly
sought to keep private was violated, for the reasons stated in Part II above.
IV
10

Because these fourth amendment violations alone require reversal of the

defendants' convictions we need not address whether the seizure of the
revolvers in their checked baggage was improper, either as a fruit of these
antecedent violations or because the baggage was imported by the government
into the jurisdiction where the search warrant was obtained. The judgment of
conviction is REVERSED.
VANCE, Circuit Judge, dissenting:

11

I agree with the district court that the officers had probable cause to believe that
Manikowski had falsely identified himself in violation of the Georgia statute. It
follows that the ensuing arrest and search of Manikowski were legal.

12

When approached in the Atlanta airport, Manikowski and Brown informed the
officers that their names were Campbell and DelRay, the false names under
which they were traveling. Although they were enroute from West Palm Beach,
Florida to Los Angeles, California they claimed not to have any identification
whatever. Manikowski consented to examination of papers taken from his totebag including a hotel receipt that showed his real name. He appeared very
nervous with his hands trembling and his breathing rapid. He had paid for his
ticket in cash but claimed that he did not have a wallet. He was clearly lying
because the shape of his wallet was apparent in his right rear pocket.

13

Manikowski did not refuse to produce identification. If he had the case would

13

Manikowski did not refuse to produce identification. If he had the case would
be different. He falsely claimed to be unable to produce identification. To my
mind the facts clearly provided the officers with probable cause as found.

14

I also disagree most strenuously with the majority's innovative analysis

concerning the violation of Brown's fourth amendment rights. The authorities
cited by the majority simply cannot, I submit, be read to support Brown's
claimed expectation of privacy in Manikowski's person.

15

I would affirm the convictions.

Honorable Luther M. Swygert, U.S. Circuit Judge for the Seventh Circuit,
sitting by designation

The Supreme Court has assumed that dog-sniff tests are highly reliable. United
States v. Place, --- U.S. ----, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983);
see also Florida v. Royer, --- U.S. ----, 103 S.Ct. 1319, 1328 n. 10, 75 L.Ed.2d
229 (1983). The result of the test in this case should perhaps give us pause
before making that assumption

See Ga.Code Sec. 26-2506:

A person who gives a false name or address to a law enforcement officer in the
lawful discharge of his official duties with the intent of misleading the officer
as to his identity is guilty of a misdemeanor.
In their pretrial motions the defendants sought to exclude the evidence
discovered as a result of the purported arrest under this statute, on the ground
that Agent Markonni was not a local peace officer entitled to enforce the
statute. The magistrate acknowledged that federal officers are not law
enforcement or peace officers for state statutory purposes, relying on United
States v. Carter, 523 F.2d 476, 478 (8th Cir.1975), and United States v.
Chapman, 420 F.2d 925, 926 (5th Cir.1969), but sua sponte took judicial notice,
based on other cases in this circuit, see United States v. Ehlebracht, 693 F.2d
333, 337 & n. 5 (5th Cir. Unit B 1982); United States v. Pulvano, 629 F.2d
1151, 1155 (5th Cir.1980), that Agent Markonni had been deputized as a local
officer. The defendants objected, seeking a hearing on the factual issue whether
the deputization extended to Clayton County, the location of the new airport, in
addition to Fulton County, where Markonni had formerly worked. We need not
resolve this dispute because of our disposition of the other claims.